FILED

United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

December 6, 2012
Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
LUIS ALTAMIRANO-QUINTERO,

No. 12-1359
(D.C. Nos. 1:04-CR-00188-REB-MJW-2
and 1:04-CR-00188-MJW-2)
(D. Colo.)

Defendant - Appellant.
ORDER AND JUDGMENT*
Before LUCERO, OBRIEN, and MATHESON, Circuit Judges.

Defendant Luis Altamirano-Quintero, a federal prisoner appearing pro se,1 seeks

review of the district courts denial of his Rule 60(b) motion. His motion challenged the
district courts dismissal of the two claims in his habeas petition brought under 28 U.S.C.
*After examining Appellants brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
1

Because Mr. Altamirano-Quintero is proceeding pro se, we construe his

pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also United
States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) ([W]e must construe [a pro se
litigants] arguments liberally; this rule of liberal construction stops, however at the point
at which we begin to serve as his advocate.).

 2255. We deny Mr. Altamirano-Quinteros request for a certificate of appealability

(COA) on his first claim for a Fourth Amendment violation. We construe his second
claim for ineffective assistance of counsel (IAC) as an application for authorization to
file a second or successive 2255 petition, which we also deny.
I.

BACKGROUND

A. Mr. Altamirano-Quinteros Guilty Plea and Direct Appeal

Mr. Altamirano-Quintero was charged with federal drug violations after a search
of his vehicle produced incriminating evidence. He moved to suppress the evidence,
arguing that he did not consent to the search. In June 2005, following his unsuccessful
suppression hearing, he pled guilty to one count of conspiracy to possess with intent to
distribute 500 grams or more of methamphetamine as part of a plea agreement with the
Government. The plea agreement emphasized that the court had discretion to sentence
Mr. Altamirano-Quintero as the law allowed and that, once Mr. Altamirano-Quintero
pled guilty, he waived the ability to appeal his guilt for this offense, but not his sentence.
At his change of plea hearing, Mr. Altamirano-Quintero expressed two concerns
about his plea agreement: 1) that he felt pressured to accept or reject the agreement
within 24 hours, and 2) that he still had unresolved concerns about a canine sniff of his
vehicle. The district court resolved each of these concerns at the hearing. First, Mr.
Altamirano-Quintero said under oath that he had sufficient time to read, review, discuss,
and consider his plea agreement and to discuss it with his attorney. Second, his attorney
and the judge addressed his questions about the canine sniff, and Mr.
Altamirano-Quintero said he was satisfied with the response and prepared to proceed
2

with his plea. Finally, Mr. Altamirano-Quintero said under oath that he understood he
was waiving his right to appeal his guilt and that he was satisfied with his attorney.
In a letter dated August 17, 2005, Mr. Altamirano-Quintero expressed to the
district court how surprised and upset he had been when he received the plea agreement
offer in June 2005 and learned that it required him to waive his right to appeal his Fourth
Amendment suppression issue. The court directed that copies of the letter be served on
both counsel for the government and for the defendant, but did nothing else to address the
letter.
On March 10, 2006, Mr. Altamirano-Quintero moved to withdraw his guilty plea
under Fed. R. Crim. P. 11(d) (A defendant may withdraw a plea of guilty or nolo
contendere . . . after the court accepts the plea but before it imposes sentence if . . . the
defendant can show a fair and just reason for requesting the withdrawal.). In his motion,
he argued that his guilty plea was not voluntary because 1) he thought he was guaranteed
a shorter sentence if he pled guilty; 2) he did not know that he was waiving his right to
appeal his suppression issue; and 3) he had ineffective assistance of counsel. Based on
the Mr. Altamirano-Quinteros testimony at the plea change hearing and his letter to the
court expressing his understanding of the waiver, the district court denied his motion.
Mr. Altamirano-Quintero was sentenced to 10 years of imprisonment. This court
affirmed his sentence on direct appeal. United States v. Altamirano-Quintero, 511 F.3d
1087, 1099 (10th Cir. 2007).

B. Mr. Altamirano-Quinteros First 2255 Motion

On September 2, 2008, Mr. Altamirano-Quintero filed a 2255 motion. He
asserted that 1) the search of his person and his vehicle violated the Fourth Amendment
and 2) his trial attorneys had been ineffective on that issue by not refuting the
Governments argument that the encounter had been consensual in the motion to suppress
or his motion to withdraw his plea.2
The motion was referred to a magistrate judge who rejected both claims. First, the
magistrate judge found that Mr. Altamirano-Quintero had waived his right to raise the
Fourth Amendment claim on collateral review because he did not raise it on direct appeal
and did not show cause that might excuse his failure to raise the claim on direct appeal.
Even if the Fourth Amendment claim could be raised, the magistrate judge found that it
was meritless.
Second, on the IAC claim, Mr. Altamirano-Quintero argued that his counsel, in his
written motion to suppress, failed to argue for the suppression of evidence from Mr.
Altamirano-Quinteros person and room, and his counsel should not have conceded that
Mr. Altamirano-Quintero consented to the vehicle search. He contends that, because of

Mr. Altamirano-Quintero also claimed that two other appointed attorneys and his
appellate counsel were ineffective. The magistrate judge found meritless the claims
about the two other attorneys who were appointed during his motion to withdraw his
guilty plea and his sentencing. Mr. Altamirano-Quintero argued that his appellate
counsel was ineffective for failing to raise his IAC claims on direct appeal, but as this
court has repeatedly held and the magistrate judge recognized in his recommendations,
IAC claims should be brought in 2255 motions and not on direct appeal. United States
v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). Mr. Altamirano-Quintero did not
challenge the courts ruling on these additional claims in any of his successive motions,
so they are not before us now.
4

his attorneys concession on the vehicle search consent, the court rendered [his
suppression hearing] testimony suspect and gave it no credibility. ROA, Vol. II at 30.
Mr. Altamirano-Quintero also argued that his counsel failed to properly investigate the
issues and present them to the court, which left him with no choice but to plead guilty.
The magistrate judge found, applying the Strickland v. Washington, 466 U.S. 668
(1984), test for IAC, that Mr. Altamirano-Quintero did not establish that his counsels
actions fell below an objective standard of reasonableness or that the outcome of the
proceeding would have changed but for his counsels unprofessional errors. ROA,
Vol. II at 140-41; see also Strickland, 466 U.S. at 688, 694. The magistrate judge found
that counsel fully pursued the issue of consent at the suppression hearing and that the
district court had correctly addressed and ruled on [Mr. Altamirano-Quinteros] consent
to the three searches. ROA, Vol. II at 143.
The district court adopted the report and recommendations of the magistrate judge
and denied Mr. Altamirano-Quinteros 2255 motion. Mr. Altamirano-Quintero
requested a COA, which this court denied. United States v. Altamirano-Quintero, 379 F.
Appx 764 (10th Cir. 2010).
C. Mr. Altamirano-Quinteros Second 2255 Motion
1. Denial of the 2255 Motion
On January 19, 2011, Mr. Altamirano-Quintero filed another 2255 motion,
which he argued was not a second or successive motion because it did not directly attack
his conviction but instead challenged the district courts denial of his previous 2255
motion.
5

The district court determined that Mr. Altamirano-Quintero had filed a second or
successive 2255 motion because he challenged the courts merits resolution of the IAC
claim in his first 2255 motion. Before a federal prisoner may file a second or
successive 2255 motion, the prisoner must first obtain an order from the circuit court
authorizing the district court to consider the motion. 28 U.S.C. 2244(b)(3)(A),
2255(h). Because Mr. Altamirano-Quintero had failed to obtain such an authorization,
the district court dismissed his motion for lack of jurisdiction and denied his request for a
COA.
2. Denial of the Second or Successive 2255 Motion
Mr. Altamirano-Quintero next requested this court to authorize a second or
successive 2255 motion. We denied this request. We held that he had failed to
demonstrate that his claims were based on newly discovered evidence that, if proven and
viewed in light of the evidence as a whole would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found [him] guilty of the
offense, pursuant to 2255(h)(1). Docket No. 312. We further held that he had failed
to show that his claims relied on a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously unavailable, as
allowed under 2255(h)(2). Id.
3. Denial of the Rule 60(b) Motion
Mr. Altamirano-Quintero then filed a Fed. R. Civ. P. 60(b) motion in the district
court requesting relief from that courts judgment denying his second 2255 motion.
First, he argued that the district court failed to address whether the search violated his
6

Fourth Amendment rights. Second, he claimed that the district court had violated the
law of the case when it ruled on his second 2255 motion that his counsel had
effectively addressed the issue of consent. He argued that this ruling contradicted the
judges comments at his suppression hearing expressing doubt about whether the validity
of his consent was properly before the court.
The district court denied the 60(b) motion. It determined that Mr. AltamiranoQuinteros Fourth Amendment argument was proper for a 60(b) motion because it
challenged the integrity of his habeas proceedings. But the court found that the claim
lacked merit. The court further explained that the IAC claim was properly classified as a
second or successive 2255 claim because it reasserted his federal basis for relief in his
first 2255 motion. Thus, the court had no jurisdiction to hear that claim without
authorization from this court.
II.

DISCUSSION

A. Treatment of Rule 60(b) Motions Following Denial of Habeas Petitions

Rule 60(b) of the Federal Rules of Civil Procedure allows a party to seek relief
from a final judgment in a limited set of circumstances, including mistake, newly
discovered evidence, fraud, or any other reason that justifies relief. A Rule 60(b)
motion filed after a habeas petition has been denied is properly characterized as a second
or successive habeas petition if it in substance or effect asserts or reasserts a federal
basis for relief from the petitioners underlying conviction. Spitznas v. Boone, 464 F.3d
1213, 1215 (10th Cir. 2006) (citing Gonzalez v. Crosby, 545 U.S. 524, 531 (2005)). But
if it (1) challenges only a procedural ruling of the habeas court which precluded a merits
7

determination of the habeas application; or (2) challenges a defect in the integrity of the
federal habeas proceeding and does not itself lead inextricably to a merits-based attack
on the disposition of a prior habeas petition, then it should be considered as a Rule 60(b)
motion. Id. at 1216 (quotations omitted).
We must treat claims that parties properly raise under Rule 60(b) separately from
claims that should be classified as second or successive habeas motions. If the district
court correctly treated the motion . . . as a true Rule 60(b) motion and denied it, we will
require the movant to obtain a [COA] before proceeding with his or her appeal. Id. at
1217-18 ([I]t would be illogical that a COA would be required to appeal from a habeas
judgment, but not from the district courts order denying Rule 60(b) relief from such a
judgment.); see also Dulworth v. Jones, 496 F.3d 1133, 1136 (10th Cir. 2007) (holding
that all appeals from final orders in habeas cases [must] meet the COA standard to
proceed).
If the district court correctly treats a Rule 60(b) motion as a second or successive
petition and transfers it to us for authorization, no COA is required because the COA
requirement applies only when the applicant desires to pursue an appeal. Spitznas, 464
F.3d at 1218 (quoting 28 U.S.C. 2253(c)(1)). Filing a second or successive petition, or
seeking authorization to file such a petition, is not an appeal. Id. Thus, a COA is not
required for this court to determine whether a second or successive petition should be
authorized.

B. Fourth Amendment Claim

The district court found that Mr. Altamirano-Quinteros first claim was a true Rule
60(b) claim because it alleged that the district court had failed to consider the claim in his
2255 motion that the search violated his Fourth Amendment rights. See id. at 1225
(ruling that petitioners contention that the district court ignored his claim was a true Rule
60(b) claim because it asserted a defect in the integrity of the habeas proceeding).
Nonetheless, the court found that Mr. Altamirano-Quinteros Fourth Amendment claim
was procedurally barred because the court had already addressed it in ruling on his first
2255 motion. In addition, the court concluded that even if it had erred by failing to
address the Fourth Amendment claim, the error was harmless because Mr.
Altamirano-Quintero unconditionally pled guilty, waiving any Fourth Amendment
claims. Mr. Altamirano-Quintero seeks a COA to appeal this Rule 60(b) ruling.
The district courts procedural bar and waiver determinations were procedural as
opposed to merits decisions. Under these circumstances, a COA may be granted only
when the petitioner shows that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and . . . whether the
district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Defendants waive the right to challenge their convictions on collateral attack when
they have pled guilty because a voluntary and intelligent plea of guilty made by an
accused person, who has been advised by competent counsel, may not be collaterally
attacked. United States v. Cockerham, 237 F.3d 1179, 1182 (10th Cir. 2001) (quoting
9

United States v. Broce, 488 U.S. 563, 574 (1989)). Mr. Altamirano-Quintero is therefore
procedurally barred from bringing a claim under 2255 attacking the merits of his
conviction, including the district courts decision to deny his motion to suppress on
Fourth Amendment grounds.
Under Slack, the relevant question is whether reasonable jurists could debate the
correctness of the district court's ruling that Mr. Altamirano-Quinteros Fourth
Amendment claim was waived. Our answer is no. Accordingly, we decline to grant a
COA to Mr. Altamirano-Quintero on this claim.
C. Ineffective Assistance of Counsel Claim
We treat a post-conviction motion filed after an initial 2255 motion as a
successive 2255 motionwhich must comply with 2255(h)s authorization
requirementif it in substance or effect asserts or reasserts a federal basis for relief from
the prisoners conviction. See United States v. Nelson, 465 F.3d 1145, 114849 (10th
Cir. 2006); Spitznas, 464 F.3d at 1215. We treat a Rule 60(b) motion as a second or
successive habeas petition when it challeng[es] the habeas courts previous ruling on the
merits of that claim. Id. at 1216. This is precisely what Mr. Altamirano-Quintero
attempted to do in his Rule 60(b) IAC claim.
The district court found that Mr. Altamirano-Quinteros IAC claim was not proper
for a Rule 60(b) motion because it neither challenges only a procedural ruling nor
challenges a defect in the integrity of the federal habeas petition. Id. We agree with
the district courts conclusion that Mr. Altamirano-Quinteros Rule 60(b) IAC claim
constitutes a successive habeas claim.
10

Mr. Altamirano-Quinteros Rule 60(b) IAC claim challenges the merits of the
district courts ruling on the second 2255 motion. See id. He argues here that there is
an inconsistency between the district courts determination that his counsel effectively
addressed the issue of his consent to be searched and the district courts expressing
doubts at the suppression hearing about whether the issue was properly raised. The
district court addressed this issue when it ruled on his first 2255 motion. We therefore
construe Mr. Altamirano-Quinteros Rule 60(b) IAC claim as an application for
authorization to file a second or successive 2255 petition.
We may authorize a second or successive 2255 petition only when the petition
contains newly discovered evidence or a new rule of constitutional law. 28 U.S.C.
2255(h). Mr. Altamirano-Quintero does not allege that his claim is based on either. He
therefore has failed to satisfy the requirements for authorizing a second or successive
2555 petition.
III.

CONCLUSION

We deny a COA on the first claim for a Fourth Amendment violation alleged in
Mr. Altamirano-Quinteros Rule 60(b) motion. We construe his second Rule 60(b) claim
for IAC as an application to file a second or successive 2255 petition, which we also
deny. This denial shall not be the subject of a petition for rehearing or for a writ of
certiorari. 28 U.S.C. 2244(b)(3)(E).
We also deny Mr. Altamirano-Quinteros motion to proceed in forma pauperis. He
has failed to advance a reasoned, nonfrivolous argument on the law and facts in support

11

of the issues raised [in this matter]. DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th
Cir. 1991).
ENTERED FOR THE COURT

Scott M. Matheson, Jr.

Circuit Judge

12